Washington and Lee Law Review Washington and Lee Law Review

Volume 28 Issue 2 Article 15

Fall 9-1-1971

Prior Convictions As Impeaching Evidence Prior Convictions As Impeaching Evidence

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Prior Convictions As Impeaching Evidence, 28 Wash. & Lee L. Rev. 490 (1971).

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490 WASHINGTON AND LEE LAW REVIEW [Vol. XXVIII

Many valid interests can be served through the use of summaryprocedures such as the creditor's interest in obtaining quasi-in-remjurisdiction."9 However, such public interest must be found to outweighthe private interest subjected to the procedure in order for therequirements of due process to be satisfied."0

The interest of an innkeeper in having a lien upon his guest's propertyshould be balanced, as in Klim, against the private interest of the guest inthe use and possession of his property.8 ' Limiting the interpretation ofSniadach to wages and prejudgment garnishment is unduly restrictive ofthe actual position which the Supreme Court has taken. The unrestricteduse of personal property may be of equal or greater value to its owner thanthe right to possession of rented premises,8 2 welfare benefits8 3 and wages. 4

If deprivation of only a portion of an employee's wages throughgarnishment proceedings may "drive a wage earning family to the wall,',the conclusion seems inescapable that deprivation of all of one's personalproperty, resulting perhaps in a corollary inability to gain employment,"would very likely have the same result.

All liens, or innkeepers' liens, are not per se unconstitutionalprocedures as the court in Klim points out.8 7 However, it seems that Klimproperly concluded that this particular lien statute is unconstitutional,because it does not exempt from the operation of the lien such property asis essential for the health, safety and well-being of the owner prior to asatisfactory hearing.

MARK M. HEATWOLE

PRIOR CONVICTIONS AS IMPEACHING EVIDENCE

When a criminal defendant testifies in his own behalf he does so as anordinary witness,' and evidence of prior convictions may be used to

7See generally Kennedy, Due Process Limitations on Creditor's Remedies: SomeReflections on Sniadach v. Family Finance Corp., 19 AM. U. L. REv. 158, 160-63 (1970).

MSee note 34 supra.81315 F. Supp. at 120-22.

82Mihans v. Municipal Court, 7 Cal. App. 3d 479, 87 Cal. Rptr. 17 (1970).83Wheeler v. Montgomery, 397 U.S. 280 (1970); Goldberg v. Kelly, 397 U.S. 254

(1970); Goliday v. Robinson, 305 F. Supp. 1224 (N.D. II. 1969); Kelly v. Wyman, 294 F.Supp. 893 (S.D.N.Y. 1968).

t4Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).851d. at 341-42.SThis was one facet of the plaintiff's claim in Klim, 315 F. Supp. at 112.

'7Id. at 124.

13A J. WIGMORE, EVIDENCE §§ 890-91 (Chadbourn rev. ed. 1970).

CASE COMMENTS

impeach the credibility of his testimony. 2 The record of prior convictionsas impeaching evidence is considered indicative of the defendant'scriminal nature which allegedly signifies a propensity to falsify histestimony.3 The courts are in agreement that the practice of using priorconvictions to impeach a defendant's credibility is necessary for properevaluation of his testimony.' However, the extent to which proceedingsmust have progressed before an accused is deemed to have been"convicted" for purposes of impeachment in a subsequent proceeding hasbeen the subject of conflicting views among the courts.

In the recent decision of State v. Frey,- the Supreme Court of Missouriconsidered whether the record of a prior judicial proceeding, at which thedefendant was found guilty but no sentence imposed, was admissible as a"'conviction" for purposes of impeachment. The defendant Frey wasconvicted in a state circuit court for unlawful sale of hallucinogenic andnarcotic drugs. At the trial, Frey's testimony' was impeached by evidenceof a prior proceeding in which he had pleaded guilty to another narcoticsviolation, but in which imposition of a sentence had been suspended7 andprobation imposed. The supreme court, in reversing, ruled thatimpeachment of Frey's credibility by introducing evidence of the priorconviction was permissible,8 but that impeaching convictions must be theproducts of final judgment. "[U]nless sentence is imposed or pronouncedin the prior proceeding," the requisite finality is absent 9 and theproceeding may not be used to impeach the credibility of the defendantunder the applicable Missouri statute. i0

21d.'Notes 60-62 and accompanying text infra.4See, e.g., State v. Reyes, 99 Ariz. 257, 408 P.2d 400, 405 (1965); State v. Cote, 108

N.H. 290, 235 A.2d 111, 114-16 (1967).'459 S.W.2d 359 (Mo. 1970).'The defendant was asked if he had previously been convicted on a narcotics charge. His

reply was that he had not. 459 S.W.2d at 359-60.'The supreme court was careful to note that this was not a suspended sentence, but a

situation in which no sentence was imposed at all prior to the time the defendant was placedon probation for a period of two years. 459 S.W.2d at 360.

id. at 362.VId. The court relied upon State v. Townley, 147 Mo. 205, 48 S.W. 833 (1898), which

held that conviction includes final judgment, and when sentence is not imposed a person isnot convicted.

tr"he applicable Missouri statute is as follows:Any person who has been convicted of a criminal offense is,notwithstanding, a competent witness; but the conviction may be proved toaffect his credibility, either by the record or by his own cross-examination,upon which he must answer any question relevant to that inquiry, and theparty cross-examining shall not be concluded by his answer.

Mo. ANN. STAT. § 491.050 (1952).

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492 WASHINGTON AND LEE LAW REVIEW [Vol. XXVIII

The practice of impeaching the credibility of a witness with evidence ofprior convictions has evolved from the common law theory that a personconvicted of an infamous crime" was incompetent as a witness.' 2 Thisstrict doctrine of incompetency was based on the theory that one convictedof this type of crime was a person of such dubious character that he wasunworthy of belief. 3 Although this theory has not existed in Anglo-American law since the late 19th century, 4 the principle of presumeduntrustworthiness associated with prior convictions has survived.

With impeachment by prior convictions a common practice inAmerican courts, 15 it is important, before allowing the introduction ofevidence of a prior conviction, to determine exactly what constitutes aproper conviction for purposes of impeachment. Generally, two views ofthe meaning of conviction emerge from the cases, one popular and onetechnical. 6 The popular view denotes the determination of the fact ofguilt, as by plea or verdict, while the technical view is associated withofficial completeness of proceedings, denoting final judgment.'" Inconstruing the legislative intent of statutes permitting the use of priorconvictions for impeachment, there has been disagreement among thecourts as to whether the popular"8 or the technical 9 meaning of convictionis the proper standard for assessing impeaching evidence.2

"Infamous crimes included treason, felonies, and acts of falsehood. 1 S. GREENLEAF,

EVIDENCE § 373 (16th ed. 1892).123 F. WHARTON, CRIMINAL EVIDENCE § 752 (12th ed. 1955); 2 J. WIGMORE, EVIDENCE

§ 519 at 570 (3ded. 1940).11 S. GREENLEAF, EVIDENCE § 372 (16th ed. 1892).

" n England the convicted criminal's competency as a witness was first assured by theCriminal Evidence Act of 1898, 61 & 62 Vict. c. 36.

'sSee 3A J. WIGMORE, EVIDENCE § 987 (3d ed. 1970). (List of statutes prescribing theuse of prior convictions for impeachment).

1The two possible interpretations of conviction have been noted by many courts. See,e.g., People v. Banks, 53 Cal. 370, 348 P.2d 102, 116, 1 Cal. Rptr. 669 (1959); Truchon v.Toomey, 116 Cal. App. 2d 736, 254 P.2d 638 (Dist. Ct. App. 1953); Ex parte White, 28Okla. Crim. 180, 230 P. 522 (1924); Commonwealth ex reL McClenachan v. Reading, 336Pa. 165, 6 A.2d 776 (1939).

"7See, e.g., Commonwealth v. Reynolds, 365 S.W.2d 853 (Ky. 1963); Dial v.Commonwealth, 142 Ky. 32, 133 S.W. 976 (1911); People v. Fabian, 192 N.Y. 443,85 N.E.672 (1908); Commonwealth v. Palarino, 168 Pa. Super. 152, 77 A.2d 665 (1951).

"8See, e.g., State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965); People v. Ward, 134 Cal.301, 66 P. 372 (1901); Commonwealth v. Reynolds, 365 S.W.2d 853 (Ky. 1963).

"E.g., City of Boston v. Santosuosso, 307 Mass. 302, 30 N.E.2d 278, 296 (1940);Commonwealth v. Finkelstein, 191 Pa. Super. 328, 156 A.2d 888, 892 (1959).

'Prior convictions also are used for various limiting or disqualifying purposes otherthan that of impeachment in subsequent proceedings. The majority of courts demand finalityof proceedings before employing convictions for such purposes. See, e.g., Medical Bd. v.Rodgers, 190 Ark. 266, 79 S.W.2d 83 (1935) (Probation without sentencing not sufficientconviction as grounds for revocation of doctor's license); Prewitt v. Wilson, 242 Ky. 231, 46S.W.2d 90 (1932) (Sentencing required before conviction used to disenfranchise); Scott v.

CASE COMMENTS

Entering a criminal proceeding, a defendant is presumed innocent; butupon a plea or verdict of guilty the courts which apply the popularmeaning of conviction consider the defendant's guilt firmly established. Inthese courts, ascertainment of guilt is equated with conviction and suchconviction is deemed acceptable for impeachment purposes.2t This viewwas adopted by the Kentucky Court of Appeals in Commonwealth v.Reynolds,u where the defendant, charged with maliciously cutting andstabbing another with intent to kill, was impeached with a record ofconviction for uttering forged checks. That record contained a plea ofguilty with sentence postponed and probation imposed. Similarly, in Statev. Reyes,21 the Arizona Supreme Court relied on the record of a guiltyverdict alone to impeach, although judgment and sentence had not beenimposed at the prior proceeding. Both courts noted that the purpose ofimpeachment 4 did not demand finality of sentencing. Rather, as the courtobserved in the Reynolds case,

[tihe Rule [of impeachment of a witness] is not concerned with thepenalty which may or may not have been imposed or whether, ifone was imposed, the accused served out his time in thepenitentiary. If it is shown that he has been guilty of a felony andhis guilt has been fixed either by a plea of guilty or a verdict of thejury, he has been convicted so far as this Rule is concerned ....If the presumption of innocence has been overcome, the extent ofthe penalty is of little importance and he has been convicted of afelony under this particular Rule.21

American Express Co., 233 S.W. 492 (Mo. Ct. App. 1921) (Final judgment of conviction ofsuspect necessary before reward given for his capture); People v. Fabian, 192 N.Y. 443, 85N.E. 672 (1908) (Finality of proceedings required before conviction used to disenfranchise);Smith v. Commonwealth, 134 Va. 589, 113 S.E. 707 (1922) (Sentencing required forconviction before that conviction is proper grounds for removal from public office). Contra,O'Hara v. Montgomery, 275 Mich. 504, 267 N.W. 550 (1936) (Finding of guilt sufficient asgrounds for removal from office). See also Sibron v. New York, 392 U.S. 40, 55-57 (1968)(Recognizing the importance of convictions because of their use in subsequent proceedings).

21State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965); Holcomb v. State, 218 Ark. 608,238 S.W.2d 505 (1951); People v. Tiner, I1 Cal. App. 3d 428, 89 Cal. Rptr. 834 (Ct. App.1970); People v. Ward, 134 Cal. 301, 66 P. 372 (1901); People v. Andrae, 295 111. 445, 129N.E. 178 (1920); Commonwealth v. Reynolds, 365 S.W.2d 853 (Ky. 1963); State v.Knowles, 98 Me. 429, 57 A. 588 (1904); State v. Shaw, 73 Vt. 149,50 A. 863 (1901); State v.Robbins, 37 Wash. 2d 492, 224 P.2d 1076 (1950).

-365 S.W.2d 853 (Ky. 1963)."99 Ariz. 257,408 P.2d 400 (1965).2 The purpose of impeachment was stated to be that of a warning to the court and the

jury that the testimony of the witness may not be trustworthy because he is a criminal. 408P.2d at 405, citing Commonwealth v. Reynolds, 365 S.W.2d 853, 859 (Ky. 1963).

25365 S.W.2d at 856 (emphasis added).

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To courts which apply this interpretation of conviction,2' the allegedprobative value of informing the jury of a person's questionable integrityis the deciding factor in a court's decision to consider as proper evidence aplea or verdict of guilty. There is no reason to withhold from the jury thedefendant's history, which marks him as a witness of dubious integrity,"7

once there has been a prior judicial determination that the defendant isguilty of a criminal act. Nothing more is needed to fulfill the requirementand historical rationale of impeachment evidence than the fact of guilt. Itis this fact of criminal misconduct, and not the subsequent sentencing,which is said to establish the untrustworthiness of the defendant wheneverhe takes the witness stand. 28

In some jurisdictions. the courts are concerned more with the effectthat the introduction of a prior conviction has on the rights and status ofthe defendant than with the alleged probative value as possible impeachingevidence.2 9 These courts adhere to the technical interpretation ofconviction, which denotes finality of the proceeding. This position isdemonstrated by the holding of the New York Court of Appeals in Peoplev. Fabian.Y In this case the defendant was charged with voting whileknowing he was disqualified by his criminal record. The allegeddisqualification was based on a "conviction" for burglary consisting of aguilty verdict upon which sentence was not passed. The court noted thatthe popular interpretation of conviction was appropriate whendistinguishing one stage in a criminal proceeding from another.3 ' Butwhen the conviction is used to affect the status or rights of the defendant ina subsequent proceeding, a party is not deemed convicted unless finaljudgment has been passed on the verdict or plea and sentence imposed. 2

The courts which adhere to this interpretation of conviction often doso upon the belief that final judgment will best protect the defendant frompossible prejudice3 due to the use of incomplete and unreliable records ofprior proceedingsYu In these courts there is an expressed aversion to theuse as impeaching evidence of guilty pleas or verdicts without sentencing.35

"Note 21 supra.

EState v. Duke, 100 N.H. 292, 123 A.2d 745, 746 (1958); accord, State v. Cote, 108N.H. 290, 235 A.2d 111 (1967).

"'Notes 60-62 and accompanying text infra."Notes 55-59 and accompanying text infra.-192 N.Y. 443, 85 N.E. 672 (1908).3'85 N.E. at 675.=Id.3Notes 65-70 and accompanying text infra.NAmerican Bank v. Felder, 59 Pa. Super. 166, 170-71 (1915); cf Commonwealth v.

Finkelstein, 191 Pa. Super. 328, 156 A.2d 888, 892 (1959).-See Karasek v. Bockus, 293 Mass. 371, 199 N.E. 726 (1936); Attorney General v.

Pelletier, 240 Mass. 264, 134 N.E. 407, 420 (1922); Neibling v. Terry, 352 Mo. 396, 177

CASE COMMENTS

Absent the finality of sentencing, a verdict may be set aside on a motionfor a new trial, new evidence may be introduced, and in subsequentproceedings the defendant may actually be found not guilty.36 Until finaljudgment the verdict may go for naught and "injure the witness in theestimate of the jury, just as in a less degree the mere indictment of thewitness would. ' 37

While the Frey court held that a proceeding in which the imposition ofsentence was suspended did not constitute a proper conviction forimpeachment purposes, other courts have found probation beforesentencing of sufficient finality to constitute a conviction. Such holdingsappear to fall somewhere between the popular and technicalinterpretations of conviction. There is a requirement of more than a barefinding of guilt but less than imposition of sentence. The holding in thePennsylvania case of Commonwealth v. Palarino38 reflects this position.In Palarino the defendant had been impeached by a record of a guiltyverdict, suspension of imposition of sentence, and probation. The courtstated the requirement that there must be prior conviction before a recordis admissible as impeaching evidence 39 and that the probation was notsentencing." While it was contended by the defendant that there could beno conviction without sentencing, the court held that since the probationorder was a proper substitution for sentencing, the proceeding constituteda conviction for purposes of impeachment."

In reaching its conclusion, the Palarino court considered probation theproduct of conclusive adjudication of the defendant's guilt, and thatnothing more was required for impeaching evidence. 42 The court'sinterpretation is consistent with that expressed by the United StatesSupreme Court in Korematsu v. United States,"3 which found the record

S.W.2d 502, 504 (1944); Commonwealth v. Finkelstein, 191 Pa. Super. 328, 156 A.2d 888,892 (1959).

3'Commonwealth v. Kiley, 150 Mass. 325, 23 N.E. 55 (1890).7American Bank v. Felder, 59 Pa. Super. 166, 170 (1915). The value of a record of

indictment after arrest was considered slight for purposes of impeachment in Slater v. UnitedStates, I Okla. Crim. 275, 98 P. 110 (1908), where it was held arrest or indictment may beassociated with innocent parties and may be no more than mere hearsay. In People v.Eddington, 23 Mich. App. 210, 178 N.W.2d 686 (1970) and People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969), the courts noted the overwhelming possibility of prejudicein the use of records of arrest and indictment as weighed against their probative value.

u168 Pa. Super. 152,77 A.2d 665 (1951); accord, Pedorella v. Hoffman, 165 A.2d 721(R.I. 1960).

1177 A.2d at 667.Old. The court considered probation as judgment."Id. Probation was considered as much a form of judicial control as imposition of

sentence.421d.

-319 U.S. 432 (1943).

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of suspended imposition of sentence a sufficient judgment to permitappellate review." Although the Korematsu Court stated that therequirement of sentencing is necessary to constitute an appealablejudgment, it further held that sentencing was necessary only where there isno other judicial determination or control imposed on the defendant.' 5

Probation was deemed sufficient judicial control over the defendant sinceit took the form of a mild ambulatory punishment."6 There would be nosuch disciplinary measures imposed if the guilt of the defendant had notbeen judicially determined, for probation is only imposed on a convictedperson. 7

However, neither sentencing nor other forms of judicial controlimposed by the trial court are always determinative of finality ofconviction. The question of the admissibility as impeaching evidence of aprior conviction pending appeal is an example of this situation. Themajority of federal' and state 9 jurisdictions allow the use of records ofprior proceedings where the outcome of that proceeding is under appeal.These courts reason that until a conviction is set aside, it is a verity andproper proof of criminal misconduct indicating the witness' questionableveracity.50 However, problems do exist when this majority practice isfollowed. If an appellate court reverses, a conviction becomes a nullity

"The defendant was found guilty by a federal district court in California of violatingrestrictions imposed on Japanese-Americans during World War II. The defendant wasplaced on five years probation and he appealed the decision to the Court of Appeals for theNinth Circuit. The circuit court, doubting whether it had jurisdiction to hear an appeal froma probation order, asked the United States Supreme Court to resolve the question.Korematsu v. United States, 323 U.S. 214, 215-16 (1944).

'319 U.S. at 434. The court followed the holdings of Hill v. Wampler, 298 U.S. 460,464 (1936), and Miller v. Aderhold, 288 U.S. 206, 210 (1933). Both cases stated that therecould be no final judgment in a criminal case until actual sentence had been imposed.

"1319 U.S. at 435,following Cooper v. United States, 91 F.2d 195, 199 (5th Cir. 1937).11319 U.S. at 435,following Nix v. United States, 131 F.2d 857 (5th Cir. 1942). The Nix

court held that even where imposition of sentence is suspended there is judgment ofconviction because probation can only be "visited" on one convicted and probation is aform of "punishment." 131 F.2d at 858.

"Newman v. United States, 331 F.2d 968 (8th Cir. 1964), cert. denied, 397 U.S. 975(1965); Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert. denied, 350 U.S. 948(1956); United States v. Empire Packing Co., 174 F.2d 16 (7th Cir.), cert. denied, 337 U.S.959 (1949). Contra, Campbell v. United States, 176 F.2d 45 (D.C. Cir. 1949).

"Latikos v. State, 17 Ala. App. 655, 88 So. 47 (1921); State v. Johnson, 99 Ariz. 52,406P.2d 403 (1965); State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965); People v. Braun, 14 Cal.2d 1, 92 P.2d 402 (1939); Gonzalez v. State, 97 So. 2d 127 (Fla. App. 1957); Dickson v.Yates, 194 Iowa 910, 188 N.W. 948 (1922); Shaffer v. State, 124 Neb. 7, 244 N.W. 921(1932); In re Abrams, 36 Ohio App. 384, 173 N.E. 312 (1930); McGee v. State, 206 Tenn.230, 332 S.W.2d 507 (1960); State v. Crawford, 60 Utah 6, 206 P. 717 (1922); State v.Martin, 176 Wash. 637,30 P.2d 660 (1934). Contra, Adkins v. Commonwealth, 309 S.W.2d165 (Ky. 1958); McCauley v. Stone, 315 S.W.2d 476 (Mo. Ct. App. 1958).

5 State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965).

CASE COMMENTS

and cannot be used for impeachment.51 Accordingly, while an appeal ispending or undecided it cannot be determined with certainty whether theconviction will be sustained or reversed. Therefore, it would appearpremature to use such a conviction since it may later be reversed anddeclared a nullity.52

The minority of courts which prohibit convictions under appeal frombeing used as impeaching evidence follow the principles enunciated inFoure v. Commonwealth.5 The Kentucky court considered an appeal as asuspension of the original proceeding, which does not become final untiltermination of that appeal.54 In essence, the trial is not concluded nor isguilt established while the case is under appeal. Rather, the trial is viewedas being "continued" until the appellate court makes its ruling., Bydemanding finality of appellate review before a conviction could be usedfor impeachment purposes, the evidence of guilt would be definitelyestablished and there would be no possibility of exposing to the jury aconviction which may later be reversed.

In arriving at its holding in the principal case, the Frey court possiblyconsidered the rehabilitative valve of probation as more important thanthe probative value of impeachment with prior convictions. The refusal toemploy the record of probation suggests that the court looked not to thefact of prior guilt of the defendant but rather to the possibility thatrehabilitation of the defendant could best be accomplished withoutexposing his record of crime. Probation allows the defendant, throughcompliance with the terms of that probation, the opportunity topermanently avoid punishment and the stigma of being considered aconvict. To look only to the determination of guilt and not to the fact thatthe defendant is capable of rehabilitation would defeat the purpose ofprobation.- The practice of stigmatizing the witness despite his probation

51Adkins v. Commonwealth, 309 S.W.2d 165 (Ky. 1958); Foure v. Commonwealth, 214Ky. 620, 283 S.W. 958 (1926); State v. Blevins, 425 S.W.2d 155 (Mo. 1968); see People v.Van Zile, 80 Misc. 329, 141 N.Y.S. 168 (Sup. Ct. 1913); Ringer v. State, 129 S.W.2d 654(Tex. 1939). Contra, Latikos v. State, 17 Ala. App. 655, 88 So. 47 (1921); People v. Braun,14 Cal. 2d 1, 92 P.2d 409 (1939); State v. Crawford, 60 Utah 6, 206 P. 717 (1922).

52When a prior conviction which is later reversed and theoretically struck from adefendant's record remains a factor in the conviction of a defendant witness where he isimpeached by that prior conviction, the erroneous conviction is in fact not completelyabrogated. Foure v. Commonwealth, 214 Ky. 620, 283 S.W. 958, 962 (1926); State v.Blevins, 425 S.W.2d 155, 159 (Mo. 1968).

0214 Ky. 620, 283 S.W. 958 (1926)."283 S.W. at 962."State v. Blevins, 425 S.W.2d 155, 159 (Mo. 1968).5The purpose of probation was well stated in the following language from the case of

Delaney v. State, 190 So. 2d 578 (Fla. 1966):The obvious purpose [of probation] was to provide for the

rehabilitation of one who had committed a crime without formally and

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might remove the incentive to complete his rehabilitation program. s7

In considering suspended imposition of sentence as something lessthan final judgment, the Frey court reasoned that the defendant's guiltcould not be conclusively established by such a record.n The court reliedon an earlier New York case holding that suspended sentence beforeimprisonment was not final judgment," and reasoned that where nosentence was imposed there was no final judgment which could be used forimpeachment purposes. Apparently underlying this decision was the beliefthat when there is a possibility that a record will work to the detriment ofthe defendant in future proceedings, probation is not final judgment."

By following the technical interpretation of conviction and requiringthat there be sentencing before an accused is convicted for impeachmentpurposes, the Frey court apparently did not consider the policy uponwhich impeachment by prior conviction is founded: That a person'sveracity can be determined by examining his previous conduct. Inappraising the theory underlying impeachment by prior conviction,Justice Holmes once stated that

• . . when it is proved that a witness has been convicted of a crime,the only ground for disbelieving him which such proof affords isthe general readiness to do evil which the conviction may besupposed to show. It is from that general disposition alone that thejury is asked to infer a readiness to lie in the particular case, andthence that he has lied in fact. The evidence has no tendency toprove that he was mistaken, but only that he has perjured himself,and it reaches that conclusion solely through the generalproposition that he is of bad character and unworthy of credit."

judicially branding the individual as a convicted criminal with consequentloss of civil rights and other damning consequences.

Id. at 580. See Arketa v. Wilson, 373 F.2d 582 (9th Cir. 1967); Exparte Medley, 73 Idaho274, 253 P.2d 794 (1953).

"The court in Exparte Medley, 73 Idaho 274, 253 P.2d 794 (1953) spoke of probation[as creating] and rightfully so, a hope in the heart of the accused that hemay ultimately be released under an order of probation without the stigmaof a judgment of conviction. This is an incentive for completerehabilitation and reform ...

Id. at 797.u459 S.W.2d at 362; accord, Attorney General v. Pelletier, 240 Mass. 264,310,311, 134

N.E. 407, 420 (1922)."People v. Page, 125 Misc. 538, 31 N.Y.S. 401 (1925)."rhis concern for a person's future rights was evidenced in the holding of People v.

Fabian, 192 N.Y. 443, 85 N.E. 672 (1908) wherein it was stated:• . . where sentence is suspended, and so the direct consequences of fine

and imprisonment are suspended or postponed temporarily or indefinitely,so, also, the indirect consequences are likewise postponed.

Id. at 674."Gertz v. Fitchburg R.R., 137 Mass. 77, 78 (1884).

CASE COMMENTS

As noted by Justice Holmes, this assumed untrustworthiness is notpredicated upon a party's specific history of falsification, but rather uponhis presumed general bad character and contempt for the law. Proof that aperson is willing to commit criminal acts tends to show a disregard foracceptable behavior in society, which is translated into a willingness togive false testimony.' 2 Thus once a party's guilt has been judiciallydetermined, his testimony may be regarded with suspicion whenever hetakes the witness stand.

The requirement of sentencing in Frey does not correspond with theprinciple that it is the criminal misconduct itself and not the punishmentwhich demonstrates a party's trustworthiness or lack thereof. There waslittle doubt as to Frey's guilt in the prior proceeding, as he pleaded guiltyto the narcotics violation. Yet the Supreme Court would not permit aguilty plea to be used as evidence to warn the jury of possible testimonialunreliability. If the court had followed the popular interpretation ofconviction, this ascertainment of guilt may have indicated the defendant'spropensity to lie under oath.' 3 Instead the court, reluctant to allowincomplete proceedings as impeaching evidence, protected the defendantfrom impeachment by possibly unreliable evidence, by implicitlyquestioning the rationale of the popular view.Y

However, the Frey decision is compatible with the opinion expressedby several writers that the practice of impeachment by record of priorconvictions is of questionable value because of the inevitable prejudice itcreates in the minds of the jury." When prior convictions are introduced

'2See Ladd, Credibility Test-Current Trends, 89 U. PA. L. REv. 166, 176 (1940). Seealso PRELIMINARY DRAFT OF PROPOSED RuLEs OF EVIDENCE FOR THE UNITED STATES

DISTRICT COURTS AND MAGISTRATES rule 6-09 comment (1969)."Notes 61-62 and accompanying text supra."Notes 33-37 and accompanying text supra.'sSee Ladd, Credibility Tests-Current Trends, 89 U. PA. L. REV. 166 (1940);

McGowan, Impeachment of Criminal Defendants By Prior Convictions. I ARIZ. ST. U. L.J. 1 (1970); Note, Constitutional Problems Inherent In The Admissibility Of Prior RecordConviction Evidence For The Purpose Of Impeaching The Credibility Of The DefendantWitness, 37 U. CIN. L. Rav. 168 (1968).

"E.g., Brown v. United States, 370 F.2d 242, 244 (D.C. Cir. 1966) (Classic illustrationof prejudicial affect of impeachment far outweighing probative value of showing priorconviction). In United States v. Beno, 324 F.2d 582 (2d Cir. 1963) it was held that basic tothe concept of fair trial is the contention that a defendant is entitled to be judged on thespecific offense charged rather than on a history of his past convictions which may mark hisconduct as "reprehensible." Courts continue to allow the use of prior convictions forimpeachment in the face of prejudice of impartiality on the reasoning that such prejudice canbe controlled by limiting instructions. This is predicated on the belief exhibited in Delli Paoliv. United States, 352 U.S. 232 (1957) that jury instructions are successful in accomplishingthis purpose; but in actuality, as pointed out in Krulewitch v. United States, 336 U.S. 440(1959), their effectiveness in this respect has been less than satisfactory. See generally Note,The Limiting Instruction-Its Effectiveness and Effect, 51 MINN. L. REV. 264 (1966).

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to the jury, it may properly use them to judge the witness' credibility. Thejury may also improperly apply the impeaching evidence and either use theconviction as conclusively showing the defendant's general criminaltendencies or conclude that since the defendant has been guilty of aprevious crime he is probably guilty of the crime with which he is presentlycharged. While the purpose of exposing the defendant's history ofconviction is limited only to impeachment of the credibility of histestimony, 7 the jury is often unable to completely divorce this evidencefrom the material issues which it must consider." This danger of juryprejudice was noted in Richards v. United States,9 which stated thatimpeachment may properly display questionable credibility, but there alsomay exist "such an atmosphere of aspersion and disrepute about thedefendant as to convince the jury that he is an habitual law breaker whoshould be punished and confined for the general good of thecommunity.

'70

Even with the concern expressed over the use of prior conviction asimpeaching evidence, 71 this well-established practice has, and will likelycontinue to be used to evaluate the credibility of a defendant's testimony.This is evidenced by the provisions allowing impeachment by priorconvictions in the PROPOSED RULES OF EVIDENCE FOR THE UNITED

STATES DISTRICT COURTS AND MAGISTRATES. 72 In light of the continueduse of impeachment by prior conviction it will become incumbent uponthe courts to balance the probative value of impeachment by priorconvictions against the ever-present threat of jury prejudice. The courtswill have to demand that the evidence of convictions introduced forimpeachment will not unduly prejudice a defendant. Some courts recentlyhave moved in this direction by allowing broad judicial discretion to

"Commonwealth v. Finkelstein, 191 Pa. Super. 358, 156 A.2d 888, 892 (1959); 2 J.WIGMORE, EVIDENCE § 488 at 590 (3d ed. 1940).

9"Any testimony given by the defendant after impeachment by prior conviction isregarded with the greatest suspicion by the jury, and the defendant is marked with the stigmaof prior conviction which weighs heavily upon the supposedly impartial determination of thejury. In one survey, results showed that juries granted acquittals far less often to defendantswith prior convictions than to defendants without criminal convictions. The defendants weredivided into two groups. One group consisted of defendants who had no previous criminalrecord or were able to keep that fact from the jury. The second group was made up ofdefendants who had previous criminal records and the jury knew of those records. In similarprosecution cases the first group of defendants received acquittals in 65%of the casesreported. The second group of defendants received acquittals in only 38%. H. KALVEN & H.ZEISEL, THE AMERICAN JURY (1966).

'1192 F.2d 602 (D.C. Cir. 1951).7 'Id. at 605.7'Note 73 infra."PRELIMINARY DRAFT OF PROPOSED RULES OF EVIDENCE FOR THE UNITED STATES

DISTRICT COURTS AND MAGISTRATES rule 6-09 (1969).